Same-Sex Marriage, The Legal Deluge

When a federal judge ordered Utah to allow same-sex marriage on Friday, did you hear the outraged response?

Neither did I. The Mormon Church, once a leader of the anti-marriage-equality fight and a major force in Utah, was practically apologetic in its disagreement with the decision. “The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect,” the Church statement said. “This ruling by a district court will work its way through the judicial process.” A few dead-enders in Utah have fought back, and there is no guarantee that the decision will survive on appeal, but the muted response suggests that everyone, on all sides of the issue, sees where the country is headed.

Dominoes are falling all over. The day before Utah became the eighteenth state (in addition to the District of Columbia) to allow same-sex marriage, New Mexico became No. 17. The New Mexico Supreme Court ruled unanimously that its state constitution required marriage equality.

Then, on Monday, two days before Christmas, a federal court in Ohio issued a lower-profile decision that may have been the most important of all. James Obergefell and John Arthur, who lived together in Cincinnati, married in Maryland at a time when Arthur was gravely ill. In anticipation of Arthur’s death, the couple petitioned the state of Ohio for Arthur to be listed as “married” on his Ohio death certificate, and to record Obergefell as the “surviving spouse.” Ohio, which does not allow same-sex marriages, refused, but federal judge Timothy S. Black ruled against the state and in favor of the couple. The judge said it was “not a complicated case.” Throughout Ohio’s history, Ohio has treated marriages solemnized out of state as valid in Ohio. “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriage as ones it will not recognize?” Black asked in his opinion. “The short answer is Ohio cannot.”

The Ohio decision is crucial because people in the United States tend to move from state to state. Like Obergefell and Arthur, people in same-sex marriages may well end up living in states where such marriages are illegal. Once they are in those states, these couples will become enmeshed in the legal system in the way that heterosexual married couples do. They will have children; they may divorce and dispute child custody; they will seek to file joint tax returns; they will visit each other in the hospital; they will want to be with each other when they die. Their lives will intersect with the legal system in scores of ways at those junctures. In light of this, many judges will face dilemmas similar to the one Black just resolved.

And these judges will almost certainly decide their cases the same way. It would be a disorderly mess to have separate spheres of law for gay married couples and straight married couples—and, more important, there is no moral or legal justification for doing so. When it comes to marriage, states have granted each other reciprocity since the dawn of the republic. Indeed, the argument for separate treatment fails for the same reason that the arguments against same-sex marriage generally fail. Robert J. Shelby, the judge in the Utah case, had a bit a sport with the predictions of calamity that have accompanied the movement for marriage equality. In his opinion, Shelby repeatedly invoked what Justice Antonin Scalia obviously meant as prophesies of doom in the recent series of gay-rights decisions. But Shelby turned them on their head. The Utah judge wrote, “The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence [v. Texas, which banned consensual sodomy laws,] in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.” Shelby also took note of Scalia’s dissent in this year’s Windsor case, which struck down the Defense of Marriage Act. Scalia wrote, “ the real rationale of today’s opinion…is that DOMA is motivated by ‘bare…desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” Shelby noted dryly, “The court agrees with Justice Scalia’s interpretation of Windsor.”

Shelby is no radical. A veteran of the National Guard, he was appointed to the bench at the instigation of Utah Senator Orrin Hatch, and was endorsed by the state’s other senator, Mike Lee, the Tea Party favorite. Shelby is simply a rational man applying a (mostly) rational set of laws.

What Shelby and all these judges are seeing is that it is impossible to offer gay people some rights and not others. They are either full citizens, or they are not. In case after case, and now state after state, judges are drawing the only principled conclusions they can. So, increasingly, is the broader citizenry. Gay people are winning—as are we all.

Photograph by Jim Urquhart/Reuters.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.